Column: Doubts about Kagan

Tuesday

Jun 29, 2010 at 7:43 PM

Sen. Jeff Sessions

Shortly after becoming Dean of Harvard Law School, Elena Kagan kicked the military out of the school's recruitment office while our troops were putting their lives on the line in two wars overseas. As Americans across the country turn their attention to Kagan's Supreme Court nomination hearing this week, her actions at Harvard will be closely examined.

As ranking member of the Senate Judiciary Committee, I have pledged that Kagan will receive a fair and thorough hearing.

Because Kagan's legal record is thin — she has never been a judge and practiced law for only two years — her time at Harvard is especially significant. The question must be asked: What does Kagan's treatment of the U.S. military at Harvard say about her fitness to hold one of the highest positions in American government?

For years, many of our nation's elite academic institutions shamefully discriminated against the armed services. The situation escalated in the 1990s after Congress passed, and President Clinton implemented, "Don't ask, don't tell." Harvard and other schools protested the policy by actively obstructing military recruitment. At these schools, major law firms and corporations were allowed to recruit officially on campus — the U.S. military was not.

It was a serious problem and a source of significant national controversy. As college administrators persisted, Congress was eventually forced to act. A law known as the Solomon Amendment was passed in 1995 and strengthened in 1999 to require universities to provide equal access to the military if they wished to keep their public funding.

Harvard disregarded the new law and continued to block the access of military recruiters. Finally, in 2002, the military had enough. Acting on the Solomon Amendment, the Department of Defense threatened Harvard with a loss of taxpayer dollars. The law school relented and the military was given full access.

That is the policy that Kagan inherited when she became dean in 2003. But instead of maintaining that policy, she reversed it — once again stripping military recruiters of their institutional access.

Kagan did not go about these efforts quietly, but led a very public charge. She filed a legal brief in a distant circuit court to challenge the Solomon Amendment. Her goal was to free Harvard from the statute so that she could block military recruitment without jeopardizing the millions in taxpayer dollars that Harvard receives each year.

But the legal challenge failed and was met with unanimous rejection from the Supreme Court.

It is true that, earlier in 2004, the 3rd Circuit Court of Appeals did instruct a lower court to issue an injunction against the Solomon Amendment. But the Circuit Court quickly suspended its own ruling before it could take effect, in order to allow the Supreme Court to hear the case. And, even if the ruling hadn't been suspended, the 3rd Circuit lacks jurisdiction over Harvard and its policies.

Simply put, Harvard was legally bound by the Solomon Amendment every single day that Kagan was dean.

Thus, when Kagan banned the military from the recruitment office she wasn't only discriminating against our men and women in uniform, but was doing so in defiance of federal law.

Kagan said these actions were driven by her disagreement with "Don't ask, don't tell." However, that disagreement was apparently not so strong that it prevented her from serving as a loyal aide to President Clinton — who, along with Congress, created the policy. Instead of taking a stand in Washington, she went to Harvard and stood in the way of military recruiters.

For that, there is no justification.

What may not be clear to some in the progressive circles of academia is certainly clear to the vast majority of Americans: Support for the troops, and respect for the law, can't be set aside whenever politically convenient.

In one of the most significant positions she's held, Kagan used her authority to hinder — rather than help — the soldiers who fight and die for our freedoms. People can and will disagree on whether that disqualifies Kagan from serving on the Supreme Court, and she will have a fair opportunity to present her side of the story.

Millions of Americans that are troubled by her actions at Harvard will be listening closely to her explanation.

Sen. Jeff Sessions in the ranking member on the Senate Judiciary Committee. He can be contacted at (202) 224-4124.

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